|
| Thomas Madden
February 4, 2013
3:38:15 PM
Entry #: 4031227
|
Practice Areas
Attorneys
Workshops
In Print
Contact Us
In This Issue:
Extra-curricular Athletics and Students with Disabilities
The Division of Developmental Disabilities' New Eligibility Rules: What Families Need to Know
Eligibility and Services from The Department of Children and Families for Children with Developmental Disabilities
Legal Victories
Upcoming Workshop: Creative Housing Options – Establishing a nonprofit to provide residential services: A legal and practical perspective
Extra-curricular Athletics and Students with Disabilities
By: Hinkle, Fingles & Prior, P.C., Attorneys at Law
The United States Department of Education’s Office of Civil Rights (OCR) recently released a groundbreaking directive requiring school districts to provide equal extracurricular athletic opportunities for students with disabilities. The directive explains that school districts must fulfill their responsibilities by providing extracurricular athletic opportunities in compliance with Section 504 of the Rehabilitation Act (Section 504).
The term "extracurricular athletics" includes club sports, interscholastic sports (including freshman, junior varsity, and varsity), at all educational levels including the post- secondary level such as intercollegiate, clubs, and intramural sports.
Section 504 requires school districts (public schools and charter schools) to provide a student with a disability an equal opportunity to participate in, and benefit from, the programs that the district offers to students without disabilities.
Section 504 does not say that every student with a disability has an automatic entitlement to participate in extracurricular athletics. Districts can still require that students demonstrate a certain skill level in order to participate in extracurricular athletics. Section 504 makes it clear, however, that the selection or competition criteria cannot be discriminatory. This general requirement has multiple specific implications:
1. School districts cannot rely upon stereotypes or generalizations in assessing whether a student with a disability has the skill level necessary to participate in the athletic activity. Rather, an individualized determination of each student’s actual skill level is required. In other words, a school district can require all students (with or without a disability) to try out and be assessed on his or her actual skill level and nothing more.
2. If a school district offers extracurricular athletic opportunities, it must also provide equal opportunities for students with disabilities to participate. In order to do this, a district must make reasonable modifications and provide aides and services necessary in order for students with disabilities to have an equal opportunity to participate in extracurricular athletics. A district can avoid providing modifications only if it can show that providing them will fundamentally alter the game or give an unfair advantage to a student with a disability over other players. (For example, adding an extra hoop in basketball, or giving a batter an extra strike in baseball.) OCR's directive makes clear that although schools may try to argue that a modification would be an undue burden to its program, such defense is rarely, if ever, successful.
3. School districts must ensure equal opportunities for students with a disability to participate to the same extent as typically developing students, and they must be allowed to participate to the maximum extent appropriate. Therefore, it is discriminatory to provide different sports leagues or services for students with disabilities that are separate from those of students without disabilities if such separation is not necessary. However, when the interests and abilities of some students with disabilities cannot be met by the district’s existing extracurricular athletics program, the school district should create additional opportunities for students with disabilities.
The big picture?
Students with disabilities must be afforded an equal opportunity to receive the benefits of extracurricular athletics. If a district cannot meet the needs of students with disabilities in their existing athletics programs, the district must create different athletic opportunities for students with disabilities. In such instances, districts must provide equal support as is furnished to the districts' other athletic programs and teams. Alternatively, districts could develop district-wide or regional teams. Districts can seek technical assistance, guidance, training and support from organizations that have provided competitive sports programs for individuals with disabilities, such as Special Olympics. In its directive, OCR strongly encourages districts to work with families, advocacy and community organizations, and athletic associations to find creative ways to create and expand extracurricular opportunities for students with disabilities.
Parents of students who wish to participate in extracurricular athletics should be sure to incorporate requests for modifications as well as the specific modifications required in a student’s IEP or 504 plan during their next meeting, if not sooner.
The Division of Developmental Disabilities' New Eligibility Rules:
What Families Need to Know
By: Hinkle, Fingles & Prior, P.C., Attorneys at Law
The Division of Developmental Disabilities has fundamentally changed the ways in which individuals are found eligible for services through new rules for eligibility that went into effect on January 22, 2013. There are two big changes:
1. On January 1, 2013, the Division of Developmental Disabilities (DDD) ceased serving children under the age of 21. The Department of Children and Families (DCF) will serve children, but it remains unclear what services DCF will actually provide.
2. DDD is now requiring all individuals to be Medicaid eligible.
While this is an emerging issue and many of the details have yet to be worked out, here is what we know so far:
Q: Who is eligible for DDD and at what age?
A: Under its new eligibility rules, DDD will accept eligibility applications only for individuals with disabilities who are at least 18 years old. Those who were found eligible for DDD services before January 22, 2013 are "presumed eligible" to receive services from DDD when they reach 21 years old.
As part of the new rules, however, any individual born on or after January 1, 1997 must reapply for DDD services after the individual attains the age of 18. This is a potentially problem for those born on or after January 1, 1997 and who are on the Community Care Waiver waiting list (formerly the "priority" category of the residential waiting list). It is unknown what will happen to these individuals, and it may be necessary to enforce possible rights to remain on the waiting list as of the date originally assigned.
DDD contends children with developmental disabilities may seek "transitional planning services" from the Division starting at age 16. DDD defines that term as "information and training to prepare for the transition from school to adult life with a focus on employment."
Q: What are the eligibility criteria?
A: In order to be eligible for services through DDD, an individual must have a developmental disability. The new rules define developmental disability as:
• a severe, chronic disability of an individual, which:
o Is attributable to a mental or physical impairment or combination of mental or physical impairments
o Is manifest before age 22
o Is likely to continue indefinitely
o Results in substantial functional limitations in three or more of the following areas of major life activity:
? Self-care
? Receptive and expressive language
? Learning
? Mobility
? Self-direction
? Capacity for independent living
? Economic self-sufficiency and
o Reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment of other services, which are of lifelong or extended duration and are individually planned and coordinated.
o Developmental disability includes, but is not limited to, severe disabilities attributable to intellectual disability, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments where the above criteria are met.
Q: What are the new Medicaid eligibility requirements?
A: One of the most significant and potentially problematic changes to the rules and to the DDD service delivery system in general is that services will be provided only to individuals who are eligible for Medicaid.
In addition, the new rules require the individual, parent or legal guardian to apply for and maintain all current and future benefits for which the individual is eligible. These include, but are not limited to, Medicare, Medicaid, any other State or Federal benefits, and third party support pursuant to statute, rule, court order or contract.
Q: What happens if the person is not eligible for Medicaid?
A: If an individual is not eligible for Medicaid, or Medicaid eligibility is lost, an interruption or termination of services by DDD may result. This is particularly troublesome because, in some limited circumstances, individuals cannot obtain Medicaid eligibility. Now more than ever, families need to ensure the individual with a disability does not have excess assets or income. A properly written Special Needs Trust may be more vital than ever.
Q: Is it possible for an individual who is not eligible for Medicaid to receive DDD services?
A: A person with a developmental disability who is not eligible for Medicaid can receive DDD services for up to 30 days, if the services are necessary because of an emergency and the individual, parent or guardian, in the discretion of DDD, is cooperative.
Q: How do the new rules affect an individual currently receiving DDD services, but who is not Medicaid eligible or who loses Medicaid eligibility?
A: In either case, the individual can receive services for a period not to exceed 60 days from the date of ineligibility as long as the individual, parent or guardian, in the discretion of DDD, is cooperating and the Assistant Commissioner has given authorization. In some cases, there is a possibility of an additional 30 day extension.
If the individual becomes Medicaid eligible within the 60 day time period, then services will continue. If families find themselves in this situation, the problem will likely be due to earnings, or assets in the individual's name. It may be necessary to create a Special Needs Trust to fix this problem. It is extremely important for families to act quickly, as court approval for the creation of trust is often required. Individuals can begin loosing DDD services as early as March 23, 2013 if action is not taken.
It is imperative that all individuals receiving services now, and those who will need DDD services in the future, apply for and are determined eligible for Medicaid. Advance planning is the key to success. All families should immediately confirm Medicaid status and work to ensure the individual is or will be Medicaid eligible.
During this time of transition, it is important for families to understand their rights and continue to advocate for the needs of their family member. A determination of ineligibility or denial of services by DDD can, and should be, appealed. However, timelines to file an appeal are very short. You may need to consult with one of our attorneys if DDD or Medicaid make a determination of ineligibility or fail to provide services.
Hinkle, Fingles and Prior is available to speak to parent groups in New Jersey at no charge on this and other topics. Please call our office at 609-896-4200.
Eligibility and Services from The Department of Children and Families for Children with Developmental Disabilities
By Hinkle, Fingles & Prior, P.C., Attorneys at Law
On January 1, 2013 the Department of Children and Families (DCF) assumed responsibility for determining eligibility and providing services for children and young adults with developmental disabilities under the age of 21.
In late December, most families eligible for services from the Division of Developmental Disabilities (DDD) received a letter from a group known as PerformCare advising them that the Division of Children's System of Care (CSOC) under DCF is now the agency responsible for the provision of services for their child. DCF recently established rules to govern the eligibility and the provision of services from CSOC.
Parents need to be aware of the following rules to ensure continued appropriate services are provided to their child.
Q: What are the criteria for eligibility for Services from DCF?
A: The DCF definition of a developmental disability is the same as DDD's. It means a severe, chronic disability of an individual, which:
• Is attributable to a mental or physical impairment or combination of mental or physical impairments:
• Is manifest before age 22
• Is likely to continue indefinitely
• Results in substantial functional limitations in three or more of the following areas of major life activity
o Self-care
o Receptive and expressive language
o Learning
o Mobility
o Self-direction
o Capacity for independent living
o Economic self-sufficiency and
• Reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment of other services, which are of lifelong or extended duration and are individually planned and coordinated.
• Developmental disability includes, but is not limited to, severe disabilities attributable to intellectual disability, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments where the above criteria are met.
Q: If my child was already determined eligible by DDD, do I need to apply to DCF?
A: Children under the age of 21 who were determined eligible for services by DDD prior 2013, do not have to apply to DCF and are automatically eligible for services from CSOC. Teens and young adults between the ages of 16 and 21are also able to receive "transitional services" from DDD.
However, children born on or after January 1, 1997 who were determined eligible by DDD do not have to apply to DCF and are eligible to receive services from CSOC, but they must reapply to DDD at age 18 in order to receive services from DDD.
Parents should note also that CSOC has indicated that it can reassess a child’s eligibility if it appears he or she no longer meets the eligibility criteria outlined above.
Q: If I never applied for DDD services for my child, can I now apply to DCF?
A: Children under the age of 18 who were not found eligible for DDD services before 2013 will have their eligibility for services determined by CSOC. CSOC will determine what services are provided.
Teens and young adults between the ages of 18 and 21 who were not found eligible for DDD services before 2013, must apply to DDD. DDD will determine eligibility, but CSOC determines the services to be provided until the child turns 21. DDD can provide transition services during this time.
Q: Does DCF require my child to be Medicaid eligible in order to receive services?
A: DCF requires individuals to apply for Medicaid/NJ Family Care and any other benefits. If found eligible the individual must maintain eligibility. However, CSOC will provide services to individuals who are not eligible for Medicaid/NJ Family Care or other benefits. Until the child turns 18, ineligibility for these programs will usually be the result of the parents' income and assets.
Q: What if my child needs services immediately?
A: In an emergency situation, CSOC can provide services before the eligibility process is completed.
Q: What can I do if DCF determines my child is not eligible for services?
A: If a child is determined ineligible, an appeal can, and should be, filed. The same is true for a denial of services.
During this time of transition, it is important for parents and guardians to understand their rights and continue to advocate for their child’s needs. A determination of ineligibility or a denial of services by CSOC can be appealed. Parents may need to consult with an attorney if CSOC is denying their child functional services or has determined their child to be ineligible for services. Timelines to file an appeal can be very short, so it will be important to act quickly.
Finally, advance planning is the key to long-term success. If not already eligible, a DCF application should be submitted immediately. In addition, for families of children born on or after January 1, 1997, it is imperative families immediately submit a DDD application when the child turns 18.
There are still a number of unresolved issues regarding DCF. Watch for future articles about DCF and DDD.
Hinkle, Fingles and Prior is available to speak to parent groups in New Jersey at no charge on this and other topics. Please call our office at 609-896-4200.
Legal Victories
With intervention from attorneys at the firm, a young girl with high functioning Asperger's syndrome will now receive additional specialized social skills programming, including meaningful opportunities to practice these skills with non-disabled peers, as part of her IEP.
Hinkle, Fingles & Prior helped a young boy with Down Syndrome participate in an after school program focused on developing social skills and interactions with non-disabled peers. The district had no existing after school social skills program, but due to our firm's efforts, a program was developed that will benefit this child and many others.
Forward this enewsletter to family members, friends and colleagues
Click here to visit our website.
SAVE THE DATE
February 11, 2013
7:00 pm to 9:00 pm
Special Olympics New Jersey
and Hinkle, Fingles & Prior, Attorneys At Law
Present
Creative Housing Options – Establishing a nonprofit to provide residential services:
A legal and practical perspective
Presenters: S. Paul Prior, Esq., Maria Fischer, Esq.
and David Light, Financial Advisor, Ameriprise Financial, Inc.
Hinkle, Fingles & Prior will provide an understanding of the legal landscape of using a nonprofit.
Mr. Light will share the story of how Katie’s House was established and how it can serve as a model for other families. Mr. Light will share his experience, give practical advice and answer questions.
This is the second in a series of workshops by Special Olympics New Jersey and
Hinkle, Fingles & Prior, Attorneys at Law, on creative housing options. These workshops are imperative for anyone interested in self-directed services and are appropriate for parents of a child with disabilities across all age groups.
Workshop will be held at the Special Olympics New Jersey Complex
3 Princess Road
Lawrenceville, New Jersey
609-896-8000
To REGISTER, contact Susan Colacello at scc@sonj.org.
Like Us on FaceBook
Hinkle, Fingles and Prior is now on FaceBook, where we post news, events and happenings as they relate to law and disability. Like us and follow us!
Practice Areas
Attorneys
Workshops
In Print
Contact Us
Forward this event announcement to family members, friends and colleagues
With offices in New Jersey and Pennsylvania, the Attorneys of Hinkle, Fingles & Prior have years of experience
providing expert counsel and legal services to families of people with disabilities and seniors. The firm's attorneys
have argued many of the precedent setting cases affecting people with disabilities in New Jersey and Pennsylvania.
Click here for Attorney Biographies.
Contact the law office at 609-896-4200, 201-940-7206 or 215-860-2100.
Disclaimer: Information contained in this publication is for educational purposes and is not a substitute for legal services.
All material © 2013 Hinkle, Fingles & Prior, P.C., Attorneys at Law.
E-newsletter development by CCS
|
